Lucker v. Gross

31 Misc. 750, 63 N.Y.S. 1074

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1900
• Status: Published

Opinion

Per Curiam.

There was sufficient evidence adduced in the defendant’s behalf to cast upon the plaintiff the burden of. showing the bona fides of the alleged transfer of the saloon by one Jacob Feller, to him.

The proof, however, fails to disclose when such sale was made; the consideration, if any, actually given therefor; when the change of possession, if any, took place; and the circumstances surrounding the transaction.

There being thus a failure of proof of these essential facts, the justice clearly erred in denying the motion to dismiss the complaint made at the close of the case; and in giving judgment for the plaintiff.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekman, P. J., Giegbrich and O’Gorman, JJ.

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Judgment reversed and new trial ordered, with costs to appellant to abide event.